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Abstract
Purpose
Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) emphasises full and equal legal capacity of all citizens to participate in decisions. This paper examines whether the principles of Article 12, also reflected in other reform documents, were evident within 12 guardianship hearings conducted in Victoria, Australia from 2001 to 2016 involving adults with cognitive disability. The issues this study raises resonate loudly across the globe as multiple signatory nations to the CRPD grapple with the complexities of implementing Article 12.
Methods
Reports of VCAT decisions with written reasons of Guardianship List hearings from 2001 to 2016 were selected from the Australasian Legal Information Institute site and analysed thematically.
Results
Thematic analysis of proceedings revealed three consistent trends. Firstly, a presumption of incapacity based on disability excluded Proposed Represented Persons (PRP) from involvement in decision-making. Secondly, external perceptions of PRPs best interest were dominated by safeguarding concerns and conflict between supporters. Finally, in multiple cases, although a PRP’s preference had been established, it was considered immaterial to the final decision.
Conclusions
The paper concludes with a promising discussion of the new Guardianship and Administration Act 2019 (Vic), which came into force on 1 March 2020, and recommendations for guardianship practice both locally and internationally.
Legal capacity should be recognised as inherent in all people, and therefore decision making incapacity should not be assumed based on a person’s cognitive and/or communication disability;
The supported decision making mechanisms, born from Article 12 of the CRPD, that facilitate acknowledgment, interpretation and acting upon a person’s expression of will and preference need to be recognised and promoted within the context of Guardianship proceedings and by health professionals when assessing decision making capacity of people with cognitive disability;
Significant knowledge and attitudinal changes are required within the Tribunal and incorporated into the practice of health professionals informing the Tribunal, in order to counter many conceptual underpinnings embedded within current guardianship legislation across the globe;
Ascertaining the will and preference of the proposed represented person should be prioritised by Guardianship tribunal members’ rather than the management of conflict between interested parties.
IMPLICATIONS FOR REHABILITATION
Acknowledgements
The authors acknowledge the guidance and support of A/Prof Anna Arstein-Kerslake of the University of Melbourne and A/Prof Patsie Frawley of Deakin University for the early guidance they provided on this research project.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 United Nations Treaty Collection. “Convention on the Rights of Persons with Disabilities: Declarations and Reservations.” Available online: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4 (accessed on 13 September 2020).
2 In Korp (Guardianship) [2005] VCAT 779, retrieved from https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2005/779.html, the proposed represented person was identified by her surname because of the extensive media coverage of the situation that led to the proceedings in the Guardianship List.
3 as stated in the Guardianship and Administration Act 1986, (Vic) S.22(2).